What Can Be Done On Immigration Now

A checklist for employees and agencies sidelined during the Wuhan virus

The current, brief lull in immigrants crossing our borders should be used as an opportunity to give overworked Border Patrol agents and CBP officers a breather, for CBP and ICE to prepare for the next wave of illegal migrants, and for EOIR to address the backlogs at the immigration courts.

CBP should use this opportunity to hire new Border Patrol agents to bolster its force of less than 20,000.

USCIS should use this time to hire additional asylum officers to adjudicate the backlog of more than 300,000 pending affirmative asylum applications, and to prepare for an onslaught of future credible fear claims.

EOIR should use the downturn in the legal economy to hire new immigration judges, in order to bolster its cadre of just fewer than 470 immigration judges, who are handling more than one million pending cases.

The immigration judges currently on the bench should use this time to issue pending written decisions (as the Supreme Court is) and to rule on pending motions.

That toll was not simply one of staffing and logistics. Quartz ran an article in July 2019 captioned: "'Bodies and minds are breaking down': Inside US border agency's suicide crisis", which stated:

Current and former CBP officers, union leaders, and internal CBP documents all describe an agency that is overburdened and understaffed, struggling to keep up with the growing crisis sparked by the Trump administration's crackdown on immigration. To handle the rush of detentions, the agency now requires mandatory overtime and forced job relocation to bolster its ranks. This added pressure, coupled with the usual strain of working border security and dealing with often desperate families seeking asylum — many of whom face indefinite detention as they await overloaded court systems — is wearing down the force.

I would strongly disagree with the line in the excerpt above that "the growing crisis [was] sparked by the Trump administration's crackdown on immigration" (tendentious twaddle that begs the question in the truest sense of the term), but the factual points are otherwise solid.

Hiring has long been an issue with respect to CBP, and in particular the Border Patrol. Being an agent can be extremely rewarding, particularly when you are saving lives and apprehending large quantities of dangerous narcotics. But many agents are stationed in extremely remote areas along the Southwest border, are subject to reassignment, and have been working 50-hour-a-week jobs for some time.

CBP hiring outpaced attrition in Fiscal Year (FY) 2019. In fact, CBP surpassed FY18 hiring by 46 percent, hiring a total of 3,448 law enforcement personnel, compared to 2,357 in FY18.

Our top mission support priority is to recruit, hire, train, retain, and support a world-class, resilient workforce. To that end, in Fiscal Year 2019, our staffing levels for CBP officers increased by 1,034 for a total of 24,511. Our staffing levels for Border Patrol agents increased by 93, for a total of 19,648.

The pride in Morgan's statements was certainly justified, but when you are trumpeting an increase in force of less than five-tenths of 1 percent, it simply shows how bad the problem had gotten.

There are millions of Americans who are currently out of work due to the effects of the Wuhan virus, and undoubtedly there are hundreds if not thousands of them who would be excellent agents, but have never considered (before) a government career. Now is the time for a concerted hiring push for a job that comes with a good salary, excellent benefits, and a great retirement package.

Now is also the time for CBP to plan on the (optimistically not too distant day) when the borders reopen. That day will bring not only millions of lawful travelers, but likely thousands of illicit migrants, as well. In the last five fiscal years, there has been an uptick in the number of migrants entering illegally or without proper documents along the Southwest border beginning in the spring, a trend that has often continued into December.

The agency has, by necessity, often had to react quickly to such surges, but the current lull would be the perfect time to put in place contingency plans for dealing with a future wave of illegal entries, using the lessons that were hard learned as the situation along the border devolved in late 2018 through 2019. The whole country seems to be working on one large contingency plan at the moment, but now would be an ideal moment for CBP to draft protocols, repurpose facilities, and institute procedures to deal with future flows on the magnitude of the humanitarian and national security disaster that unfolded along the border in FY 2019.

And, to the degree that it is possible, CBP should give its agents and officers a breather. In war, troops at the front get leave, and I hope the agency is extending the same benefit to its employees (not that they can go very far or do much).

Speaking of hiring, the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA), has significantly boosted its hiring of immigration judges over the last four years.

As of the first quarter of 2020, there were 466 immigration judges on board, but I estimate that the agency needs at least 234 more — for a cadre of 700 immigration judges — to be able to address the huge number of pending cases (which stood at 1,066,563 as of January 23, 2020) effectively.

One of the consequences of the economic crisis that has been brought about by the Wuhan virus is the number of layoffs, furloughs, and salary cuts at major law firms. At least some of those lawyers may be willing to trade the uncertainty of Big Law (and its effects on family and lifestyle in general) for the economic security and prestige that comes with being an immigration judge. EOIR should view this as an opportunity to fill its ranks with experienced attorneys who can become exceptional judges.

On the subject of immigration judges, while most removal cases end with the judge issuing an oral decision from the bench (my preferred style), a number of them require the more thoughtful contemplation of a written decision. I have heard anecdotes of immigration judges who had tens of such files piled up in their office, awaiting a determination. If the Supreme Court can continue to issue decisions even as it has suspended oral arguments, the immigration courts can do the same.

Immigration judges should, and can, be at work issuing orders on matters that they have set for decision, as well as ruling on pending motions.

The downturn in the legal economy also provides opportunities for ICE to bolster its legal division. ICE always needs talented attorneys, and I thoroughly enjoyed the job when I served at the former INS. Again, it comes with a nice salary and pension.

And those unemployed college graduates who are looking for opportunities could always consider U.S. Citizenship and Immigration Services (USCIS). For example, in October, USCIS stated that it planned to hire 500 new employees to work in its asylum directorate by the end of 2019. Given the 340,810 affirmative asylum applications that were pending with the agency at the end of FY 2019 — a year in which it adjudicated 78,000 such claims — I would expect USCIS to hire even more asylum officers in 2020.

Even in the worst of times, the federal government is a 24-7 operation. Nowhere is that more true than in immigration. The current, brief lull in immigrants crossing our borders should be used as an opportunity to give overworked agents a breather, prepare for the next wave of illegal migrants, and address the backlogs at the immigration courts.

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985. It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.